Constitution
of Bangladesh, 1972
Article 102, substituted sub–Article (5)–
The High
Court Division in spite of the substituted sub–Article (5) of Article 102 of
the Bangladesh Constitution is competent to examine the propriety or otherwise
of an act of such a person when it acts malafide or in coram non judice.
Fazlur
Rahman Chowdhury vs Bangladesh 39 DLR 314.
Articles 102, 31 & 40–
Contractual
obligation– Writ jurisdiction– Ramna Cafeteria being property of the government
under the PWD is not distinguishable from Government property like fisheries,
etc. the government is equally the owner of all of them which are leased out to
the successful bidders according to the rules in exercise of powers rooted in
statute. The contract between the parties was not an ordinary contract between·
ordinary tenderer and buyer, rather the Government acted in this case in the
course of administration of the affairs of the Republic.
Shahadat
Hossain vs Executive Engineer 44 DLR 420.
Articles 102 & 42–
The
petitioner being a “person aggrieved” by enlistment of her house as
abandoned property can maintain a writ petition irrespective of whether she has
other equally efficacious remedy or not.
Sarwari
Begum vs Bangladesh 45 DLR 571.
Articles 102 and 103–
Rules as to
discharge of onus probandi. A mere denial by the respondent of a fact in issue
raised by the petitioner in a Writ Petition will not render that fact a
disputed fact but if the assertion made by the petitioner is unsupported by
materials to the satisfaction of the Court, the Court may refuse to act on such
material alone–Where the respondent denies a fact without adducing convoking material
in support of such denial but the court finds it difficult to draw a definitive
inference or conclusion from the assertion of the petitioner then it will be a
case where the petitioner has failed to discharge his onus probandi.
Dr Syed
Matiur Rob vs Bangladesh 42 DLR (AD) 126.
Articles 102 & 103–
It will be
inappropriate for the High Court Division to reject an application summarily,
when according to the High Court Division, it involves a substantial question
of law as to the interpretation of the Constitution. But when the High Court
Division summarily rejects a writ petition then it will be equally
inappropriate to give a certificate under Article 103.
Rear Admiral
AA Mustafa vs Bangladesh 46 DLR (AD) 43.
Articles 102 & 109–
Artha Rin
Adalat Act cannot take away the power of superintendence and control of the
High Court Division over all Courts subordinate to it as conferred by the
provision of Article 109 of the Constitution.
Iftekhar
Afzal and another vs Pubali Bank Limited & ors 50 DLR 623.
Articles 102 & 116–
When a
declaratory judgment is passed by a Court it is usually retrospective in
nature, unless otherwise indicated. Therefore the interpretation of Article 116
of the Constitution given by the High Court Division will be operative ever
since the amended Article 116 is in operation.
Government
of Bangladesh represented by the Secretary, Ministry of Establishment vs
Jdrisur Rahman, Advocate and others 51 DLR (AD) 163.
Articles 102 & 117–
The decision
of the Appellate Tribunal like that of the Tribunal is immune from any review
under Article 102 because Article 117 also applies to the Appellate Tribunal.
Mujibur
Rahman vs Bangladesh 44 DLR (AD) 111.
Articles 102 and 117–
Civilian
employees in the Defence Services, not being members of any of the Defence
Service, are holders of civil posts who now have to move the Administrative
Tribunal for redress of their grievances and cannot move the High Court
Division in Writ jurisdiction.
Sirajul
Islam Thakur vs Bangladesh 46 DLR 319.
Articles 102 & 117–
The
Administrative Tribunal, in exercise of its power under clause (1) of Article
117 of the Constitution, cannot knock down a law on the ground of its
unconstitutionality and, as such, it appears that the Administrative Tribunal
is not competent to entertain the case in which the petitioners have prayed for
knocking down a certain provision of law contained in Annexure–B and Annexure–C
of the writ petition. Since the Administrative Tribunal does not have any
jurisdiction to knock down the aforesaid provisions of law we find that it has
no jurisdiction to decide this matter and, as such, clause (2) of Article 117
of the Constitution ousting the jurisdiction of this Court is not attracted.
Retired
Govt. Employees Welfare Association vs Bangladesh 46 DLR 426.
Articles 102 & 117–
Even in the
presence of an alternative remedy, the petitioner, instead of going to the
Administrative Tribunal, can come before this court for the protection of his
fundamental right of equality of opportunity in the service of the Republic.
Sazedur
Rahman vs Secretary, Ministry of Establishment, and others 50 DLR 407.
Articles 102 & 117–
Question of
payment of subsistence to the government servant during suspension, relates to
terms and conditions of service within the jurisdiction of the Administrative
Tribunal.
Sheikh Abdul
Hakim vs Government of the People’s Republic of Bangladesh and others 52 DLR
333.
Articles 102 and 117–
Since the
petitioner has challenged the vires of law i.e. section 8 of Act XX of 2000,
the present writ petition is entertainable as the Administrative Tribunal has
no authority to strike down section 8 of the impugned Act.
Salahuddin
Talukder (Md) vs Government of the People’s Republic of Bangladesh 56 DLR 161.
Articles 102 & 125(b)–
Since no
Tribunal has been constituted by any law for the trial of the election dispute
with regard to the election of the President of Bangladesh, the present
petitioner has no other alternative but to file the instant writ petition under
Article 102 of the Constitution.
Abu Bakkar
Siddique vs Justice Shahabuddin Ahmed and others 49 DLR 1.
Articles 102 & 134–
Military
personnels hold their posts during the. pleasure of the President. In the case
of the civilian employees the pleasure theory is curtailed by constitutional
provisions but in the case of a military personnel there is absolutely no
exception to this theory of pleasure.
Lieutenant
General Abu Saleh Mohammad Nasim (Retired), BB psc vs Bangladesh 51 DLR (AD)
101.
Articles 102 and 142–
Interpretation
of constitutional provisions–The Constitution cannot be distorted in exercise
of the power under Article 142–Ifthe Supreme Court is retained but the power of
judicial review under Article 102 is taken away, the form will be there but the
soul will be gone and the Constitution will be rendered unworkable– No
objection to exercise of amending power to fulfill the needs of time and of the
generation–Power not to be construed to turn the Constitution which is a
scripture of hope into a scripture of doom.
Anwar
Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165.
Articles 102, 142, 149 & Para 3A(7) & 18 of the 4th
Schedule–
Indemnity
Ordinance No. 50 of 1975 is not a part of the Constitution, rather it is an
ordinary law protected and saved in the category of “other laws” in
paragraphs 3 A and 18 of the 4th Schedule. In pursuance of paragraphs 3A(7) of
the 4th Schedule and Article 149 of the Constitution, this Ordinance has been
legally repealed by simple majority members of the Parliament, as such the
Indemnity (Repeal) Act, 1996, does not offend either paragraphs 3A and 18 of
the 4th Schedule or Article 142 or any other provisions of the Constitution.
Shahriar
Rashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law and
Parliamentary Affairs and others 49 DLR 133.
Articles 102 and 152(2)–
A company is
also a person under section 3(39) of the General Clauses Act read with Article
152(2) of the Constitution. The word ‘person’ occurring in Article 102
includes, by operation of section 3(39) of the General Clauses Act, a company
as well.
So, under
section 3(39) of the General Clauses Act read with Article 152(2) of the
Constitution a company is also a person. Moreover, it appears to us that the
word, “person”, has been used in unqualified term thereby including a
juristic person. If it was intended to limit its meaning to its narrower sense
to mean an “individual” to the exclusion of any juristic person it
would have been done in explicit language. In absence of any explicit language
to exclude a juristic person from the word “person” we are inclined
to hold that the word “person” occurring in Article 102 includes, by
operation of section 3(39) of the General Clauses Act, a company as well.
Conforce
Limited vs Titas Gas Transmission 42 DLR 33.
Article 102(1)–
Judicial
review– This flows from the Court’s constitutional duty to enforce a
fundamental right with regard to the vires of a law.
Asaduzzaman
vs Bangladesh 42 DLR 144.
Article 102(1)–
The impugned
legislation (the Amending Act No. 14 of 1989 which amended PO No. 26 of 1973)
has not violated any provision of the Constitution– Motives of the majority
party in the Legislature in passing an enactment or its merits are non issues
in a proceeding under Article 102( 1) of the Constitution when the
constitutionality of an enactment is prima facie unassailable.
Asaduzzaman
vs Bangladesh 42 DLR (AD) 144.
Article 102(1)–
Article 102
is a mechanism for the enforcement of Fundamental Rights which can be enjoyed
by an individual alone insofar as his individual rights are concerned, but
which can also be shared by an individual in common with others when the rights
pervade and extend to the entire population and territory: Per Mustafa Kamal J
delivering the Full Court Judgment.
Dr Mohiuddin
Farooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation,
Water Resources and Flood Control and others 49 DLR (AD) 1.
Article 102(1)–
Per Kazi
Ebadul Haque J. : When a writ petition is filed for enforcement of fundamental
rights under Article 102(1) of the Constitution there is no question of
exhaustion of other equally efficacious remedy and as such in spite of such
remedy being available in the matter under any law a writ petition for
enforcement of any of the fundamental rights appears to be maintainable.
Bangladesh
and others vs Mizanur Rahman 52 DLR (AD) 149.
Article 102(1)–
Per Kazi
Ebadul Haque J : Writ petition is an extraordinary remedy provided by the High
Court Division to an aggrieved person when no other equally efficacious remedy
is provided by law to him because whenever there is a wrong done to a person he
should have a remedy against the same.
Bangladesh
and others vs Mizanur Rahman 52 DLR (AD) 149.
Articles 102(1) & 117(2)–
A person who
intends to invoke fundamental right for challenging the vires of a law will
seek his remedy under Article 102(1 ), but in all other cases he will be
required to seek remedy under Article 17(2) of the Constitution in service
matter.
Ali Hossain
Fakir and 5 others vs Government of the People’s Republic of Bangladesh and
others 50 DLR 231.
Article 102(1) & (2)–
The
alternative remedy does not bar granting of relief in an application under
Article l 02(1) of the Constitution but such remedy may stand as a bar in an
application under Article 102(2) of the Constitution.
Rafique–ul–Huq
vs Bangladesh 44 DLR 398.
Articles 102(1) & 117(2)–
Jurisdiction
of Administrative Tribunal– It can strike down an order for violation of
natural justice and for infringement of fundamental rights but it cannot strike
down any bar or rule on the ground of its constitutionality. Duty of court is
to see the right given under Article 102(1) is not frittered away or misused.
Mujibur
Rahman vs Bangladesh 44 DLR(AD) 111.
Article 102(1)(2)–
Since Bangladesh
Retired Government Servants Welfare Association is an association for looking
after the common interests of all retired government employees, the Association
is entitled to ventilate their interests before the Court in the form of public
interest litigation.
Retired
Govt. Employees vs Bangladesh 46 DLR 426.
Article 102(1)(2)(a)–
Environmental Pollution– In view of the fact
that the Election Commission has issued necessary direction, the city
corporation has taken steps for implementation of the direction and the
Government also gives assurance to the same effect, further direction by the
court for observing election rules (towards keeping environment pollution–free)
is not necessary, although the court feels that it is desirable to mitigate the
environmental pollution as alleged by the Bangladesh Environmental Lawyers
Association.
Bangladesh
Environmental Lawyers Association vs Election Commission & others 46 DLR
235.
Article 102(1)(2)(a)(i) & (ii)–
“Person
aggrieved”–Question of locus standi to file writ petition– Whether
Bangladesh Sangbadpatra Parishad, a registered association of owners of the
newspapers and newspaper organisations in Bangladesh, is competent to challenge
the validity of the constitution of Wage Board and its authority of fixing
minimum wages for newspapers employees.
Held: In the facts and circumstances of the case, the petitioner
Bangladesh Sangbadpatra Parishad is not a “person aggrieved” to
question the award of Wage Board or the connected law, as it has nothing to
lose or win by the impugned award. It is the owners of newspapers and the
employees who are affected by the award and not Bangladesh Sangbadpatra
Parishad. This Parishad may represent the employers anywhere but it has no
locus standi to invoke the jurisdiction of this Court under Article 102 of the
Constitution.
Bangladesh
Sangbadpatra Parishad vs Bangladesh 43 DLR 424.
Article 102(1)(2)(a)(ii)–
Inclusion of
the disputed property in the list of abandoned properties by the Gazette
notification having been found to be without jurisdiction, the notification is
in violation of the petitioner’s right to hold property. Even if his
fundamental right would not have been affected his writ petition would lie
inasmuch as the alternative remedy of invoking the jurisdiction of the Court of
Settlement became non–existent in the meantime.
Alhaj
Mohammad Rahimuddin Bharsha vs Bangladesh represented by the Secretary of the
Ministry of Works and another 46 DLR 130.
Article 102(1)(2)(a)(b)–
When a writ
can be issued for the enforcement of the fundamental rights on the application
of an aggrieved person.
Conforce
Limited vs Titas Gas Transmission 42 DLR 33.
Article 102(1)(2)(5) & 152–
Bangladesh
Retired Government Servants Welfare Association is an association registered
under the Voluntary Social Welfare Agencies (Registration and Control)
Ordinance, 1961 (Ordinance No. XLVI of 1961). It, therefore, appears that its
activities are authorised by the above Ordinance and, as such, this association
can be deemed to be a body within the meaning of the definition of
“statutory public authority” as defined in Article 152 of the
Constitution. So, by operation of Clause (5) of Article 102 of the Constitution
this association is a “person” within the meaning of clause (1) and
of clause (2) of Article 102 of the Constitution.
Retired
Government Employees vs Bangladesh 46 DLR 426.
Article 102(1)(5)–
“Exhaustion
rule’– No one is entitled to move the Court for a supposed or threatened injury
until all the available remedies of the administrative authorities have been
exhausted including appeal to the administrative superior. The ‘exhaustion
rule’ cannot be avoided on the ground of inseparable injury or expeditiousness
of judicial remedy. After exhausting all available remedies the petitioner can
attempt to move this Court for enforcement of fundamental rights.
Abdul Hannan
Khan vs Ministry of Home Affairs 43 DLR 131.
Article 102(2)–
Writ
jurisdiction and inherent jurisdiction of the High Court Division,
applicability of–If there was any statutory provision of appeal and revision
for setting aside the proceedings in question against the petitioner, then the
question whether any equally efficacious adequate alternative remedy is
available to him would act as a bar to move the High Court Division under the
writ jurisdiction. Inherent jurisdiction of the High Court Division under
section 561A CrPC cannot be said to be an alternative remedy to the Court’s
writ jurisdiction.
Anisul Islam
Mahmood vs Bangladesh 44 DLR 1.
Article 102(2)–
Since the
petitioner did not avail of the alternative forum of appeal as provided in the
Customs Act and the said forum being an equally efficacious one for his remedy,
the Rule obtained in this case should be discharged.
Delicia
Dairy Food Ltd vs Collector of Customs and others 51DLR381.
Article 102(2)–
Provision of
Article 102(2) or any other provision of the Constitution do not preclude the
High Court Division either to reconsider or to review the correctness of its
judgment upon fresh material(s).
Serajuddin
Ahmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41.
Article 102(2) &(1)–
The
alternative remedy does not bar granting of relief in an application under
Article 102( 1) of the Constitution but such remedy may stand as a bar in an
application under Article 102(2) of the Constitution.
Rafique–ul–Huq
vs Bangladesh 44 DLR 398.
Article 102(2) and (5)–
The word
“Persea” – What it connotes–An Adminstrative Tribunal is not a
‘person ‘within the meaning of Article 102 and as such the same is not under
the High Court’s writ jurisdiction contemplated in Article 102.
Dr Md
Abdullahel Based Shah vs The Secretary, Ministry of Health 38 DLR 409.
Articles 102(2) & 117–
Maintainability
of writ petition in service matter–It is found from the facts of the writ
petitions that the question of fundamental right invoked therein has been so
mixed up with the facts and statutory rules that the question of fundamental
right cannot be extricated for exclusive consideration in a petition for
enforcement of fundamental right. Therefore, the High Court Division rightly
held the writ petitions to be maintainable under Article 102(2).
Bangladesh
vs Md Azizur Rahman 46 DLR (AD) 19.
Article 102(2)( a )–
Chittagong
Authority has in exercise of its statutory power floated tender for the
purchase of machineries for capital investment and as such it cannot be said
that the transaction is an ordinary trading transaction.
Sumikin
Bussan Corporation vs Chittagong Port Authority and others 53 DLR 599
Articles 102(2)(a) & 152(2)–
A writ
petition for orders directing persons performing any functions other than those
of the Republic or of a local authority is not maintainable. Such petition
against the Bangladesh Diabetic Association which is not performing any
function in connection with the affairs of the Republic or of a local authority
as defined under the General Clauses Act is summarily rejected.
Manjurul Huq
vs Bangladesh 44 DLR 239.
Article 102(2)(a)(i)–
Mandamus,
requirement of– In order to enforce the performance by public bodies of any
public duty by mandamus, the applicant must have a specific legal right to
insist upon such performance.
National
Engineers vs Ministry of Defence 44 DLR (AD) 179.
Article 102(2)(a)(i)–
The writ of
mandamus can be issued for enforcing the performance of duty by Government or
its officials only when they are under a legal obligation towards a subject to
carry out specific ministerial duties imposed by law. The Government is under a
‘legal obligation’ towards the respondents” to carry out specific
ministerial duties”, thereby imposed upon. them by law, namely, “to
complete the formalities to transfer the mill”.
Secretary,
Ministry of Industries vs Saleh Ahmed & others 46 DLR (AD) 148.
Article 102(2)(a)(i)(ii)–
Termination
of service by way of punishment and without show cause notice is of no legal
effect.
Manjurur
Rashid vs Rural Electrification Board 46 DLR 505.
Article 102(2)(a)(ii)–
Certiorari, principle of– The High Court
Division can intervene to prevent an Election Tribunal from exceeding its
jurisdiction or from working by travelling beyond its jurisdiction. The court
would be empowered to ·prevent such a tribunal from going wrong in law but that
is not the same thing as correcting a decision or an order merely because it is
erroneous. A tribunal may decide a point of law or pass an order in deciding
some issue keeping itself within jurisdiction though deciding the issue
wrongly. Such error would not be an error for interference under certiorari
though the same could be examined in an appeal.
Mustasim Ali
vs Abdul Motalib and others 45 DLR 733.
Article 102(2)(a)(ii)–
Maintainability
of writ petition against GrameenPhone–The service agreement ‘entered into by
and between the subscribers and GrameenPhone is not an ordinary trading
agreement but a contract for providing mobile telephone services by
GrameenPhone as an agent and licensee of the Government. Any act of
GrameenPhone in breach of the contract or showing want of transparency on its
part as complained of by the petitioner is accountable in writ jurisdiction.
Zakir
Hossain Munshi vs Government of the People’s Republic of Bangladesh 55 DLR 130.
Article 102(2)(a)(ii)–
The High
Court Division acting under Article 102(2)(a)(ii) can only make a declaratory order
and nothing more and unless it is required by law to do it cannot direct any
authority to do a particular thing.
Bangladesh,
represented by Secretary, Establishment Division and others vs Mahbubuddin
Ahmed 50 DLR (AD) 154.
Article 102(2)(a)(ii)–
“Person
aggrieved”—Locus standi
In a writ of
certiorari the petitioner must establish that by the act done either his
constitutional right or any legal right has been invaded and that he has a
direct and substantial interest in the matter.
Raufique
(Md) Hossain vs Speaker, Bangladesh Parliament and others 47 DLR 361.
Articles 102(2)(a)(ii)–
Mere
pendency of the Partition Suit cannot be a ground for refusing mutation of the
disputed properties in the names of the petitioners.
Debesh
Chandra Bhattacharya and others vs Government of Bangladesh and others 56 DLR
525.
Article 102(2)(a)(ii) & 102(2)(b)(i)–
Maintainability
of writ petition challenging legality of the order of detention after release
of detenu– The petitioner being an aggrieved person along with others
challenged the validity of the transaction made during his detention period
touching the transfer of the Mill of the Company of which he was the Managing
Director. If the order of detention remained unchallenged it may be used
against him which may create obstacle in the way of his getting proper remedy.
No other Court other than this Court under Article 102 of the Constitution has
jurisdiction in the matter.
Any suit or
other proceeding may be taken in any appropriate Court for anything done not in
good faith. The impugned order has not therefore become infructuous and the
relief prayed for is not for academic purpose. In this view the writ petition
is quite maintainable and the petitioner is entitled to the declaration prayed
for.
Mirza Ali
Ashraf vs State 43 DLR 144.
Article 102(2)(a) or (b)–
Mere passing
of an order of detention which has not gone beyond the official record cannot
be said to have been made curtailing the personal liberty of the petitioner and
cannot be challenged under the writ jurisdiction.
Mohammad Ali
vs Government of the People’s Republic of Bangladesh, represented by the
Secretary, Ministry of Home Affiars, Bangladesh Secretariat and others 47 DLR
350.
Article 102(2)(b)–
Kidnapping
of children –Habeas Corpus–Question of maintainability– Provision of the Article is very wide in
nature as it provides that any person and not only an aggrieved person can take
to the notice of the court that somebody is illegally detained by any person
and the court shall, after being satisfied, direct the person to be set at
librety at once. A petition in the nature of habeas corpus for the custody of a
minor would also be equally competent without sending the petitioner to exhaust
remedy before the Family Court or under The Guardians and Wards Act or other
criminal Court.
Sharon Laily
Begum Jalil vs Abdul Jalil and others 48 DLR 460.
Articles 102(2)(b) & 31–
Every
citizen has an inalienable right to be treated in accordance with law–mere
insertion of a section of some law in the order of detention is not enough. The
provision of law must be strictly followed. Under Article 102(2 )(b) of the·
Constitution the Court is to be satisfied that the detenu is not being held in
custody without lawful authority–the Court is to see whether the grounds of
detention supplied to the detenu are supported by materials.
Faisal
Mahbub vs Bangladesh 44 DLR 168.
Article 102(2)(b)(1)–
By giving
the child to the custody of the mother the boy is deemed to be set at liberty
from unlawful custody (of the father) in exercise of the Court’s power under
the writ jurisdiction.
Ayesha
Khanam vs Major Sabbir Ahmed 46 DLR 399.
Article 102(2)(b)(1)–
Judgment by
Sessions Judge confirming sentence passed by Summary Martial Law Court under
MLR 11 in 1978 for accepting remuneration for private visits by the petitioner
as a veterinary surgeon is without jurisdiction as the offence complained of
does not come within the mischief of illegal gratification.
Nazmul
Hossain (Md) vs State, represented by the Deputy Commissioner, and others 48
DLR 417.
Article 102(2)(b)(i)–
Habeas
corpus– decision of foreign jurisdictions. In view of the wider jurisdictional
approach this court has taken in habeas corpus matters the decision of foreign
jurisdictions may not be always helpful to us. We may benefit from some well–known
earlier decisions for their persuasive value.
Nasrin Kader
Siddiqui vs Bangladesh 44 DLR (AD) 16.
Article 102(2)(b)(i)–
Custody on
the plea of conviction–Where a prisoner is in custody on the basis of an order
of conviction the onus of the respondent is discharged as soon as the return
relating to the appellant’s custody shows that there is an order of conviction
justifying the custody. But the conviction is to be placed before the court for
its satisfaction whether the irregularity in it can be overlooked. The warrant
of commitment issued by one not authorised under the law can hardly prove the
conviction.
Nasrin Kader
Siddiqui vs Bangladesh 44 DLR (AD) 16.
Article I02(2)(b)(i)–
A husband
has a right to the custody of the wife and a wife has a right to remain with
the husband. This is the ordinary law of the country. The husband would be
given the protection of the law and so also his wife though she is a Kuwaiti
national. That being the position, she is directed to be released from Police
Line and be directed to be allowed to go wherever she would like to.
Nur Ahmed
and another vs Bangladesh and others 48 DLR 275.
Article 102(2)(b )(i) –
If it is
manifest from the writ petition itself that the cause or manner of detention
stands adequately explained and justifed on the face of it, the respondents
need not file an affidavit–in–opposition and may support the detention orally
relying on the petition itself.
Nasima Begum
vs. Government of the People’s Republic of Bangladesh, represented by the
Secretary, Ministry of Home Affairs and others 49 DLR (AD) 102.
Article 102(2)(b)(i)–
Rejection of
writ petitions against criminal proceedings on grounds of availability of
alternative remedy by way of quashing of the proceedings cannot be a bar
against further writ petitions against the same criminal proceedings when the
very legality of the institution of the proceedings have been challenged.
Shahriar
Rashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law and
Parliamentary Affairs and others 49 DLR 133.
Article 102(2)(b)(i)–
A preventive
detention is the deprivation of the liberty ofa citizen, which right should not
be taken away in an arbitrary manner. So this Court enjoys power to review the
actions of the detaining authority under Articles 102(2)(b )(i) of the
Constitution and under section 491 of the Code.
Anwar
Hossain (Md) and others vs State and others 55 DLR 643.
Article 102(2)(b)(ii)–
Writ of quo
warranto –The election of a candidate could not be challenged under Article 102
of Constitution but when the candidate after being elected assumes the office
of Chairman or other Public Office then any person can invoke the provision of
sub–article 2(b)(ii) of Article 102.
Farid Mia vs
Amjad Ali 42 DLR (AD) 13.
Article 102(2)(b)(ii)–
Sub–Article
(2)(b)(ii) of Article 102 of the
Constitution provides that person holding or purported to hold a public office
may be required to show under what authority he claims to hold that office.
Warish Miah
vs Secretary, Ministry of Local Government 41 DLR 51.
Article 102(2)(b)(ii)–
But
principle of quo warranto can be applied in case of a disqualified candidate
who has his name in Gazette notified and on his taking oath of office. His
right to office is created under law from that time.
Warish Miah
vs Secretary, Ministry of Local Government 41 DLR 51.
Article 102(2)(b)(ii)–
Candidate
who has been declared as elected but his name has not been Gazette notified or
he has not taken oath of office, direction in the nature of quo warranto cannot
be issued against him.
Warish Miah
vs Secretary, Ministry of Local Government 41 DLR 51.
Article 102(2)(b)(ii)–
Writ of quo
warranto– Court is justified in issuing such writ in order to get information
from the respodnent Nos. 3–5 as to how they cling to their office without
performance of duties and obligation attached to such office.
Anwar
Hossain Khan vs Speaker of Bangladesh Sangsad Bhavan and others 47 DLR 42.
Article 102(2)(b)(ii)–
A person
will be found to hold an office without lawful authority, if he is not
qualified to hold the office or some mandatory provision of law has been
violated in making his appointment or when the appointment has been made by a
person who has no authority to do so.
Shamsul Huq
Chowdhury vs Justice Md Abdur Rouf and others 49 DLR 176.
Article 102(2)(b)(ii)–
Quo warranto–
A writ of quo warranto cannot be indulged in by a person to serve the ulterior
purpose of another individual.
Shaikh (Md)
Obaidullah Raihan vs Sayed Shahidul Haque Jamal and others 54 DLR 280.
Articles 102(2)(b)(ii) and 152–
The words
“public office” in the Article 102(2)(b)(ii) mean persons holding
constitutional and elected offices and not the persons holding any office in
the statutory authorities entrusted with the conduct and management of the
business of the Government.
Abdur Rahman
(Md) vs Group Captain (Retd) Shamim Hossain and others 49 DLR628.
Article 102(3)–
Granting of
an interim order under Article 102 is not an absolute plenary power– It is
totally prohibitive in relation to certain laws.
Commissioner
of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.
Article 103(3)–
Consideration
of evidence afresh on a point missed by the petitioner before the High Court
Division is not a good point for granting leave.
Narayan
Chandra Das and others vs Abdur Jabbar Dewan and others 52 DLR (AD) 35.
Article 102(4)–
To obtain an
interim order, a writ petitioner must not only make out a prima facie case, but
a strong prima facie case.
Commissioner
of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.
Article 102(4)–
It is in the
public interest to protect private interest which stands in the danger of being
irretrievably damaged or faces extinction.
Commissioner
of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.
Article 102(4)–
An interim
order can also be passed when the order under challenge is shown to suffer from
an absolute lack of jurisdiction (as distinct from a mere difference of
interpretation between various relevant authorities or between a relevant
authority and the writ petitioner) or clear or patent excess of jurisdiction or
patent mala fide without requirement of further proof.
Commissioner
of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.
Article 102(4)–
Regard for
the public welfare is the highest law and in each case the High Court Division
will consider whether in spite of prima facie case and balance of convenience
the individual interest should be subjugated to public interest.
Commissioner
of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.
Article 102(4)–
An analysis
of clause (4) brings into sharp focus the definite constraints within which the
High Court Division has to pass an interim order under clause (I) or sub–clause
(a) of clause (2) of Article 102 of the Constitution.
Commissioner
of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.
Article 102(4)–
Personal
guarantee is a very weak and uncertain security which should be avoided in the
best interest of public revenue.
Commissioner
of Customs, Mongla Customs House and others vs SARC Enterprise 51 DLR (AD) 165.
Article 102(4)(1)(a)(b)–
The High
Court Division will not consider whether an interim order will actually
prejudice or interfere with the implementation of any development programme or
work or will actually be otherwise harmful to the public interest, but will
only consider whether such interim order “is likely to have” the said
effect.
Commissioner
of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.
Article 102(4)(1)(b)–
The
conditions precedent for the exercise of this power are mandatory, not
directory.
Commissioner
of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.
Article 102(4)(1)(b)–
A
“reasonable notice” means a reasonable length of time within which it
is possible and feasible for the Attorney–General to obtain instructions from
relevant quarters.
Commissioner
of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.
Article l02(4)(1)(b)–
What is
reasonable notice will depend upon the facts and circumstances of each case,
but if the AttorneyGeneral alleges and proves to the satisfaction of the Court
that he was not given reasonable notice of the application, one of the
condition precedents for the exercise of the power is not fulfilled and the
interim order renders itself liable to interference.
Commissioner
of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.
Article 102(4)(1)(b)–
The
appearance of the Attorney–General before the Court is only for the purpose of
assisting the Court in forming its satisfaction. But satisfaction is an
independent constitutional obligation of the High Court Division and it does
not depend upon the appearance or non–appearance of the Attorney General.
Commissioner
of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.
Article 102(5)–
A statutory
public authority is a ‘person’ within the meaning of Article I 02(5) of the
Constitution– The respondent being a subsidiary of the parent Corporation
(BOGC) is attracted within the jurisdiction of Article 102 of the Constitution.
Conforce
Limited vs Titas Gas Transmission 42 DLR 33.
Article 102(5) & 117–
High Court
Division has no jurisdiction to entertain any proceeding or make any order in
respect of any matter falling within the jurisdiction of Administrative
Tribunals. In the instant case we have already found that the petitioner having
held a post in the disciplined force which is a . civil post and, as such, his
remedy lies before the Administrative Tribunal set up under the provisions of
the Constitution and the order of dismissal of the petitioner from his service
in the Republic could be assailed before the Administrative Tribunal set up for
the purpose.
Ayub Ali vs
Bangladesh 46DLR191.
Articles 102(5) and 152–
Petitioner
belonging to disciplined force discharged from service by an order of an individual
officer–They were not dealt with by the Court or TribunalWrit is maintainable.
Md Fazlur
Rahman vs Government of Bangladesh, Ministry of Home Affairs 41DLR459.
Articles 102(5) and 152(2)–
‘Person’
occurring in sub–article (5) of Article 102– Meaning of–’Person’ occurring in
section 3(39) of General Clauses Act, 1897 shall include any company or
association or body of individuals whether incorporated or not.
Conforce
Limited vs Titas Gas Transmission 42 DLR 33.
Article 102 Paras 3A & 18 4th Sch.–
The
Indemnity Ordinance of 1975 was continuing as an existing law along with other
laws, after withdrawal of Martial Law, being protected and saved by the terms
“other laws” as contained in paragraphs 3A and 18 of the 4th Schedule
of the Constitution, and it is subject to judicial review of this Court
whenever it is challenged.
Shahriar
Rashid Khan vs. Bangladesh, represented by the Secretary, Ministry of Law and
Parliamentary Affairs and others 49 DLR 133.
Article 102 & Para 19(2) 4th Sch –
Jurisdiction
of this Division to examine the validity or otherwise of an order passed under
Martial Law Order No. 9 of 1982 has been ousted in view of paragraph No. 19(2)
of the Fourth Schedule to the Constitution as enacted by the Constitution
(Seventh Amendment) Act, 1986.
Lutfor
Rahman vs Divisional Mechanical Engineer and others 51 DLR 133.